In his recent biography of James Wilson, The Lost Founder, Jesse Wegman characterizes Wilson as a democratic visionary, both an example and a warning for us. According to Wegman, Wilson’s life and works illustrate what a truly democratic America might look like, but Wegman also warns us of the dangers that might occur from passing over or misinterpreting the popular elements of our founding.[1] This review will focus on a narrow aspect of Wegman’s argument on Wilson’s legal philosophy, specifically the claim that Wilson’s training in and familiarity with the civil-law tradition via Scots law served as the basis for his arguments in favor of independence, during the ratification debates, and in his work as a jurist. This review will argue, and hopefully demonstrate, that it is the common law of England, which Wilson views as unique in its adherence to the natural law through its rationality and manifestation of consent, that provides the foundation for Wilson’s legal arguments. I acknowledge that Wilson draws on his civil-law training in making these arguments, but I contend that Wilson views the common law as perfectly capable of offering philosophical, moral, and legal support for them.

In this way, Wegman is correct that Wilson’s uniquely “perceptive legal analysis was central to the push by the colonies for independence, and his political and moral arguments informed every major deal struck at the 1787 constitutional convention.”[2] But, by stressing the civilian foundation for Wilson’s analyses, Wegman misinterprets Wilson’s arguments on the nature of law as a science. These misinterpretations lead to a further misunderstanding of the proper task and role of judges in Wilson’s philosophy.

Wegman repeats the common but incorrect trope that Wilson wanted to be the “American version of William Blackstone.”[3] I disagree. If Wilson wanted to be the “American version” of anyone, it was Sir Edward Coke. It is “my Lord Coke,” rather than Blackstone, whom Wilson cites as his authority for his interpretations of the common law as the refined and perfected wisdom of “grave and learned men” uniquely suited for the government of the realm.[4] Therefore, when Wilson speaks of law as a science, he is referring to the common law. It is the common law that is a science, a science based on experiment. The collection of pleadings, forms, and precedents that represent the common law together form the basis of an inductive science of law, a science that Wilson views as the most successful experiment in the history of mankind in making the law of the land (the English common law) conform to the law of nature.

Law as a Science

Although this review focuses on Wilson’s view of the English common law, a few comments about Wegman’s portrayal of the civil-law tradition that supposedly provides the foundation for Wilson’s arguments are in order. Wegman states that Roman law, and thus by extension Scots law, “took a more intellectual and philosophical approach to resolving legal questions,” as opposed to the common law that derived its authority from tradition and precedent. Romano-Scots Law “was more concerned with logic and reflection. Arguments were won not by reliance on prior case law but by appeal to first principles. . . . In short, the common law was a trade, while Scots law was more of an intellectual pursuit, even a science.”[5]

This characterization is inaccurate. Roman law was intensely practical. Roman jurists did refer to what Wegman calls “first principles,” but their stock in trade was providing practical answers to everyday legal questions.[6] There are frequent recurrences to first principles in the Corpus to be sure. But the overarching trend of the civilian tradition is case-specific and detail-oriented. It is inaccurate to assert that Wilson’s training in the civil law, as opposed to the common law, enabled him to range more freely philosophically as a lawyer and judge. Despite not having a doctrine of precedent, the civil law, like the common law, is and was largely practical, though with regular recurrence to foundational jurisprudential principles. Wilson viewed the common law too as providing for, and in fact requiring, recourse to such principles.

I now turn to my main concern: Wilson’s view of the common law. In recounting the context of Wilson’s Law Lectures, Wegman quotes Wilson’s statement that the proper method by which to study and teach law is “as a historical science.” Wegman then asserts that this statement reflects Wilson’s “educational training in the Scottish tradition, as opposed to the English one, which . . . treated the law as more of a trade.”[7] This assertion is incorrect.

When Wilson characterizes law as a science, he speaks explicitly and particularly about the common law, praising it as the ideal legal science. That is not to say that he does not consider the civil-law tradition as a science, or that he does not criticize some features of the common law. Nevertheless, contrary to Wegman’s assertion that civilian legal training led Wilson to view the common law as a trade and the civil law as a true science, Wilson states that in free countries that “boast the blessing of a common law, . . . Law should be studied and taught as a historical science.”[8] In other words, the very thing that Wegman argues makes the common law non-scientific (its emphasis on history and precedent) is exactly the feature that Wilson cites as rendering it a science. The fact that the common law emphasizes precedent renders it capable of scientific study. Wilson elaborates on this viewpoint:

The common law is the law of experience. Far is it, indeed, from being without its general principles; but these general principles are formed strictly upon the plan of the regulae philosophandi, which, in another science, Sir Isaac Newton prescribed . . . — they are formed from the coincidence, or the analogy, or the opposition of numberless experiments, the accurate history of which is contained in records and reports of judicial determinations. To peruse those reports — to consult those records, requires much time and industry. To methodise [sic] them under the proper heads, requires much attention and patient sagacity.[9]

The common law is a proper science following the rules pertaining to the inductive method. Wilson’s point is that lawyers (and, importantly, citizens) ought to study it as such, rather than as a mere trade.[10] Wilson acknowledges that the common law’s sources lack organization, are often poorly expressed, or are studied without forming a system of “principles truly political and philosophical.” Even so, there is no science that boasts “richer materials,” nor materials “more neglected or abused, than in the science of law — particularly of the common law.”[11] We rightly can conclude that Wilson’s broader view of the law and its more general principles derives not from his civilian training but from his view of the common law as a science and of his role as a common lawyer making what he sees as full and proper use of its rich materials.

Wilson does disparage those who treat the law as a trade, but he does not suggest that the common law is merely a trade. When he says that law studied “as a trade depending merely upon precedent” is a “drudgery,” he is continuing his previous observation on how lawyers study and apply the common law, chastising the common opinion “that the only institution necessary for a practicing lawyer is, to observe the practice in a lawyer’s office.”[12] Wilson is neither criticizing the common law for its adherence to precedent nor suggesting that the civil-law tradition is better in that it enables one to study law as a science. Instead, he is criticizing blind adherence to precedent and the inability and unwillingness of lawyers to go beyond even “unessential form[s]” simply because “they are not within the sphere of [one’s] practice.”[13] Wilson is arguing that common lawyers must take a broader view of their practice. Young lawyers should study and apply the common law as it truly is, an inductive science dependent upon philosophical principles and collecting “experiments” leading to proper legal conclusions. Wilson does not cite a civilian or Scots lawyer for these propositions. He has no need, for a long line of philosophers and jurists in both civilian and common-law traditions have made the exact same point. These jurists include Cicero, Justinian, Bracton, and of course, Coke, upon whom Wilson is relying here.[14]

It is worth quoting Wilson to illustrate his commitment to the common law as an inductive science. The common law’s foundations,

laid in the most remote antiquity, have not been overturned . . . . The reason has been already hinted at: it contains the common dictates of nature, refined by wisdom and experience, as occasions offer, and cases arise. In all sciences, says my Lord Bacon, they are the soundest, that keep close to particulars. Indeed a science appears to be best formed into a system, by a number of instances drawn from observation and experience, and reduced gradually into general rules . . . . The natural progress of the human mind, in the acquisition of knowledge, is from particular facts to general principles. This progress is familiar to all in the business of life; it is the only one, by which real discoveries have been made in philosophy; and it is the one, which has directed and superintended the instauration of the common law. In this view, common law, like natural philosophy, when properly studied, is a science founded on experiment.[15]

Wilson’s point could not be clearer. The common law attempts to discern “regular and undeviating principles” to guide “the most diversified and disjoined appearances.”[16] It is a proper science; indeed, it is the ideal form of the science of law.

One final noteworthy observation is that Wilson does not limit the common law to England. Instead, “it is the proper term for other laws also.” Any law reflecting “common consent” and “refined reason” deserves the name common law.[17] In fact, Roman law contained significant portions of customary law in its “free and happy periods” through the time of Justinian.[18] Wilson views the common law, whether English, Scottish, or Roman, as a science built upon and leading to the discovery of unwavering principles and manifesting consent.

Wilson’s Taxonomy of Judgment

Wegman’s general mischaracterization of Wilson’s jurisprudence as being primarily civilian leads him to other mischaracterizations about Wilson’s views regarding the task of a judge and the role of precedent. Wilson views the role of a judge as administering justice between parties in particular cases of varied facts, but according to foundational principles of justice. He views the common law as the most successful attempt to ensure the conformity of the law of the land to the law of nature because it represents refined and collective reasoning and also reflects the natural-law requirement of consent. Therefore, Wilson does not view judicial reference to natural-law principles as beyond the scope of judicial authority. But he does not view judges as having the authority to engage in discursive, moral reasoning.[19]

Wegman emphasizes Wilson’s ability, in his jury instructions and judicial decisions, to range more freely philosophically due to his familiarity with the civil-law tradition.[20] But Wegman misses the unique role that Wilson assigns to common-law reasoning. For Wilson, the common law both includes and aims at conformity with the natural law without permitting judges to engage in philosophical speculation or assume the role of legislators.

Borrowing from Coke, Wilson defines the “judicial authority” as “applying, according to the principles of right and justice, the constitution and laws to facts and transactions in cases.”[21] Thus, knowledge and application of general principles of right and justice are features inherent to judicial authority, not unique to the civil-law tradition. Yet for all of his philosophizing in judicial opinions, jury instructions, and law lectures, Wilson repeatedly emphasizes the constraints that the common law places on its ministers. He stresses that the common law is heavily dependent upon reasoning by way of analogy, rendering judges either the mere “instrument” of the law or requiring them to engage in “deduction and illation” upon the laws.[22] The common law, according to Wilson, does (and must) have recourse to self-evident truths as well as fundamental principles derived from them. He explicitly states that judges can and must have the ability to declare laws contrary to the natural moral law void. He does not view this authority as a judicial usurpation of the legislature but instead as a simple declaration of the controlling force of a superior law.[23] Even so, judges are not free to roam about philosophizing or usurping the legislative function through their own “considerations of policy.” Such judicial decisions are the most “terrible instruments of arbitrary power.”[24] The common law must of course have reference to and find its source of obligation in the natural moral law. All judgments, including those by private individuals, must do so. However, specifically legal judgments, particularly at common law, require more. The task of judges is not to engage in discursive, moral reasoning, but to apply the refined precepts of the common law, informed by the natural law, to specific facts and circumstances.

In describing this task, Wilson emphasizes the binding force of precedents and observes that “every prudent and cautious judge will appreciate” them, remembering “that his duty and his business is, not to make the law, but to interpret and apply it.”[25] Thus, the true author of the common law is not judges, but the people. “[T]he characteristic[] of a system of common law” is its accommodation “to the circumstances, the exigencies, and the conveniencies [sic] of the people, by whom it is appointed.”[26] Judges are bound by precedents because they too represent (though indirectly) the true sovereign, the people. Judicial decisions are the evidence of the law that the true sovereign has appointed. They are not the law itself, but the evidence of it.[27] Thus, judges must adhere to those prior experiments that have identified the common law and met with approval. For Wilson, judicial usurpation is worse than tyrannical legislation. But the common law itself provides several bulwarks against such usurpation, including its origin in consent through customs long-approved, its reliance upon analogous reasoning, and the binding force of its precedents.

Wilson’s philosophical expositions are thus not solely, or even largely, a product of his early legal training in civil law generally or Scots law more particularly. Instead, they reflect his belief that all law is a science and that the common law is particularly suited to the inductive philosophical method. He speaks as a common lawyer attempting to accomplish what he said ought to take place in a free country: “The knowledge of those rational principles on which the law is founded, ought, especially in a free government, to be diffused over the whole community.”[28] Wilson does not choose to “focus on first principles . . . rather than the close examination of legal precedent,” as Wegman would have us believe.[29] For Wilson, that would be a false dichotomy. Judicial decisions can and must have recourse to philosophical truths and foundational principles of jurisprudence; precedents elucidate and give them effect. Like Lord Coke before him, Wilson is supremely concerned with articulating the rational foundations of the common law.

***

While Wegman’s biography merits praise for its breadth and thoroughness, his characterization of Wilson’s jurisprudence is incomplete. Wegman mischaracterizes Wilson’s relationship with the civil-law and common-law traditions. Wilson speaks as a common lawyer concerned to ensure the wide diffusion of the foundational principles of the common law. It is the common law, not Romano-Scots law, that Wilson sees as the wisest product of time and as a science. This law, in its emphasis on reasoning by analogy and in the bonds it places on judges through precedent, avoids a dangerous union of judicial and legislative powers. For Wilson, the common law is an experimental, inductive science, the most successful attempt man has devised to ensure that the law of the land conforms to the natural law. Wegman overlooks these aspects of Wilson’s work. We should instead accurately characterize Wilson’s jurisprudence as stemming directly from his Cokean conception of the common law as a proper science aimed at uncovering and applying universal principles.

[1] Jesse Wegman, The Lost Founder: James Wilson and the Forgotten Fight for a People’s Constitution (Celadon Books, 2026), 277–81.

[2] Wegman, Lost Founder, 9.

[3] Wegman, Lost Founder, 230. See, e.g., Justin Buckley Dyer, “James Wilson, Necessary Truths, and the Foundations of Law,” Duquesne Law Review 56, no.2 (Summer 2018): 50 & n4; Kermit L. Hall, Introduction to Collected Works of James Wilson, ed. Kermit L. Hall and Mark David Hall, 2 vols. (Indianapolis: Liberty Fund, 2007), 1:xiv, xxiv.

[4] James Wilson, The Works of the Honourable James Wilson, L.L.D., ed. Bird Wilson (Lorenzo Press, 1804), 2:46 (hereinafter, Works).

[5] Wegman, Lost Founder, 26. Wegman draws on William Ewald for much of this characterization. See generally, William Ewald, “James Wilson and the Scottish Enlightenment,” University of Pennsylvania Journal of Constitutional Law 12 (April 2008): 1053–1114.

[6] See generally, James Bryce, “The Law of Nature,” in Studies in History and Jurisprudence, 556–606 (Oxford University Press American Branch, 1901), 2:556–57, 575; Paul J. du Plessis, Borokowski’s Textbook on Roman Law, 6th ed. (Oxford University Press, 2020), 46; Peter Stein, Roman Law in European History (Cambridge University Press, 2004), 1, 27; Ernst Levy, “Natural Law in the Roman Period,” Natural Law Institute Proceedings 2 (1948): 64–69; Caroline Humfress, “Natural Law and Casuistic Reasoning in Roman Jurisprudence,” in State and Nature: Studies in Ancient and Medieval Philosophy, ed. Peter Adamson and Christof Rapp, (Walter de Gruyter, 2021), 247–66.

[7] Wegman, Lost Founder, 231 (italics added).

[8] Wilson, Works, 1:5, 2:31–32 (italics added).

[9] Wilson, Works, 2:407–8.

[10] See also Wilson, Works, 1:9–10.

[11] See Wilson, Works, 2:410–16.

[12] Wilson, Works, 2:414–15

[13] Wilson, Works, 2:415.

[14] See, e.g., Cicero, De Republica V.iii.5; De Legibus I.iv.14 (discussing the triviality of law practice and concluding that statesmen and lawyers ought to have at least some knowledge of the origins of law and justice or “universal law”); Justinian, Digest I.i.1 (describing lawyers and jurists as priests of the art of law, cultivating justice, knowing what is right and good, and aiming at a true rather than a sham philosophy); Bracton, On the Laws and Customs of England, 2:22 (stating that one cannot be just without a knowledge of the laws and customs he must apply and observing the interchangeability of jus (right) and lex (law)); Sir Edward Coke, The First Part of the Institutes of the Laws of England, Or a Commentary Upon Littleton, 9th ed. (Rawlins, Roycroft, and Sawbridge, 1684), 183; see also 394; Second Part of the Institutes, 5th ed. (Streater, Twyford, and Flesher, 1671), 290 (stating the importance of knowing the “reason of the Law”).

[15] Wilson, Works, 2:43–44 (footnote omitted).

[16] Wilson, Works, 2:44

[17] Wilson, Works, 2:3–4.

[18] See Wilson, Works, 2:12–19.

[19] For a more detailed version of this argument, see generally, Candace Terman, “‘Judgments of Nature’: James Wilson’s Natural-Law Jurisprudence,” The Review of Politics 86, no.2 (Spring 2024): 152–75.

[20] See, e.g., Wegman, Lost Founder, 236, 241–43.

[21] Wilson, Works, 1:405.

[22] Wilson, Works, 2:104.

[23] Wilson, Works, 1:460.

[24] Wilson, Works, 1:408.

[25] Wilson, Works, 2:308

[26] Wilson, Works, 2:38

[27] Wilson, Works, 1:308, 397–98.

[28] Wilson, Works, 1:10.

[29] Wegman, Lost Founder, 243 (italics added).